The following Part is proposed to be inserted following Part IA of the Family Law Act 1975 (Cth) (“the Act”):
Part IB – Pre-action procedures
9B Application
(1)
This section applies to proceedings under this Act other than proceedings:
(c)
the case involves dispute about a court’s jurisdiction in bankruptcy under section 35 or 3B of the Bankruptcy Act;
(d)
the case involves a genuine dispute about the existence of a de facto relationship, or whether a choice under item 86A or 90A of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 should be set aside;
(e)
the applicant is applying for the order to be made with the consent of all the parties to the proceedings.
9C Object of this Part
The object of this section is to ensure that, as far as possible, each prospective party to a case in the Federal Circuit and Family Court of Australia must take genuine steps to resolve disputes before starting a case.
9D Genuine steps to resolve a dispute
(1)
For the purposes of this Part, a person is regarded to have taken genuine steps to resolve a dispute if the steps taken by the person in relation to the dispute constitute a sincere and genuine attempt to resolve the dispute, having regard to the person's circumstances and the nature and circumstances of the dispute.
(2)
Examples of behaviour that may constitute steps taken by a person as part of taking genuine steps to resolve a dispute with another person, include (but are not limited to):
(a)
notifying the other person of the issues that are, or may be, in dispute, and attempting to negotiating with the other person, with a view to resolving the dispute, or authorising a representative to do so;
(b)
responding appropriately to any such notification;
(c)
providing relevant information and documents to the other person to enable the other person to understand the issues involved and how the dispute might be resolved;
(d)
considering whether the dispute could be resolved by a process facilitated by another person, including an alternative dispute resolution process;
(e)
if such a process is agreed to:
(i)
agreeing on a particular person to facilitate the process; and
(ii)
attending the process;
(f)
if such a process is conducted but does not result in resolution of the dispute--considering a different process;
(3)
Subsection (2) does not limit the steps that may constitute taking genuine steps to resolve a dispute.
9E Definitions
In this Part:
"applicant" in proceedings means a person who institutes the proceedings.
"application" means an application (however described) by which civil proceedings are instituted.
"excluded proceedings" means proceedings set out in section 9B(1).
"genuine steps statement" :
(a) for an applicant--see section 9F;
(b) for a respondent--see section 9G.
"lawyer" has the same meaning as in section 4 of the Act.
"respondent" in proceedings means a person against whom the proceedings are instituted.
9F Genuine steps statement to be filed by an applicant
(1)
An applicant who institutes proceedings in a court exercising jurisdiction under this Act must file a genuine steps statement at the time of filing an application.
(3)
A genuine steps statement filed under subsection (1) must specify:
(a)
the steps that have been taken to try to resolve the issues in dispute between each prospective party to a proceeding; or
(b)
the reasons why no such steps were taken, which may relate to, but are not limited to the following:
i.
the urgency of the proceedings;
ii.
where there are allegations of family violence;
iii.
where there are allegations of fraud;
iv.
where the applicant would be unduly prejudiced;
v.
where the respondent has behaved in a way that shows a serious disregard for their obligations under an order of the Court; and
vi.
where a time limitation is close to expiring.
(4)
A genuine steps statement need not be filed under subsection (1) in relation to proceedings that are wholly excluded proceedings.
(5)
A genuine steps statement must be filed under subsection (1) in relation to proceedings that are in part excluded proceedings, but the statement need not relate to the parts of the proceedings that are excluded proceedings.
9G Genuine steps statement to be filed by respondent
(1)
A respondent in proceedings who is given a copy of a genuine steps statement filed by an applicant in the proceedings must file a genuine steps statement before the first date fixed for the hearing of the application.
(2)
A genuine steps statement filed under subsection (1) must:
(a)
state that the respondent agrees with the genuine steps statement filed by the applicant; or
(b)
if the respondent disagrees in whole or part with the genuine steps statement filed by the applicant--specify the respect in which, and reasons why, the respondent disagrees.
9H Genuine steps statements must comply with Rules of Court
A genuine steps statement must comply with any additional requirements specified in the Rules of the court.
9I Duty of lawyers to advise people of the requirements of this Part
(1) A lawyer acting for a person who is required to file a genuine steps statement must:
(a) advise the person of the requirement; and
(b) assist the person to comply with the requirement.
9J Effect of requirements of this Part
(1)
The requirements of this Part are in addition to, and not instead of, requirements imposed by any other Act.
(2)
A failure to file a genuine steps statement in proceedings does not invalidate the application instituting the proceedings, a response to such an application or the proceedings.
9K Court may have regard to genuine steps requirements in exercising powers and performing functions
(1)
A court exercising jurisdiction under this Act may, in performing functions or exercising powers in relation to proceedings before it, take account of the following:
(a)
whether a person who was required to file a genuine steps statement under section 9F in the proceedings filed such a statement;
(b)
whether such a person took genuine steps to resolve the dispute.
9L Exercising discretion to award costs
(1)
In exercising a discretion to award costs in a proceeding in a court exercising jurisdiction under this Act, the court, Judge or other person exercising the discretion may take account of:
(a)
whether a person who was required to file a genuine steps statement under section 9F in the proceedings filed such a statement; and
(b)
whether such a person took genuine steps to resolve the dispute.
(2)
In exercising a discretion to award costs in a proceeding in a court exercising jurisdiction under this Act, the court, Judge or other person exercising the discretion may take account of any failure by a lawyer to comply with the duty imposed by section 9I.
(3)
If a lawyer is ordered to bear costs personally because of a failure to comply with section 9I, the lawyer must not recover the costs from the lawyer's client.
9M Powers are in addition to powers under the Act
(1)
The powers conferred on a court exercising jurisdiction under this Part are in addition to any other powers of the court, whether conferred by this Act, the rules or otherwise.
9N Rules of Court
(1)
Rules of Court made under the Act may make provision for or in relation to the following:
(a)
the form of genuine steps statements;
(b)
the matters that are to be specified in genuine steps statements;
(c)
time limits relating to the provision of copies of genuine steps statements.
Mediation and Arbitration
The following Part is proposed to be inserted following Part IIIB of the Family Law Act 1975 (Cth) (“the Act”):
PART IIIC – Mediation and Arbitration
Division 1 - Mediation
19A Request for mediation
(1)
A person who is a party to proceedings before the court may file a notice of intention to attend a mediation with a mediator to seek assistance in settling a dispute to which the person is a party.
(2)
Where a notice is filed in the court:
(a)
the notice must be dealt with in accordance with the Rules of Court; and
(b)
if a mediation service is available at the Registry of the court and the dispute is one that, under the Rules of Court, may be mediated, the appropriate officer of the court must make arrangements for an approved mediator to mediate the dispute in accordance with the Rules of Court.
(3) In this section:
“dispute” means a dispute about a matter with respect to which proceedings (other than prescribed proceedings) could be instituted under this Act.
19B Court may refer matters for mediation
(1)
Subject to the Rules of Court, the court may, at any stage of the proceedings make an order referring any or all of the matters in dispute in the proceedings for mediation by an approved mediator.
(2)
A court may make an order under subsection (1) with or without the consent of the parties to any proceedings (other than prescribed proceedings).
(3)
Where a court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make such additional orders as it thinks appropriate to facilitate the effective conduct of the mediation.
(4)
Where a court makes an order under subsection (1), the appropriate officer of the court must make arrangements for an approved mediator to mediate the relevant disputed matter in accordance with the Rules of Court.
(a)
a court makes an order under subsection (1) in relation to any matter in dispute in proceedings before it; and
(b)
a party to the proceedings files a notice in the court that the mediation of the matter has ended;
the court may make such orders, or give such directions, as it thinks appropriate in relation to the proceedings.
19C Admissions made to mediators
Evidence of anything said, or of any admission made, at a conference conducted by an approved mediator, acting as such a mediator, is not admissible:
(a)
in any court (whether exercising federal jurisdiction or not); or
(b)
in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.
Division 2 – Arbitration
19D Court may refer proceedings to arbitration
(1)
In proceedings under Part VIII or Part VIIIAB of the Act, the court may, subject to the Rules of Court, make an order referring the proceedings, or any part of them, or any matter arising in them, to an approved arbitrator for arbitration in accordance with the Rules of Court.
(2)
A court may make an order under subsection (1) with or without the consent of the parties.
(3)
Where a court makes an order under subsection (1), it may, if necessary, adjourn the proceedings and may make such additional orders as it thinks appropriate to facilitate the effective conduct of the arbitration.
(4)
Where a court makes an order under subsection (1), the arbitration must be carried out by the approved arbitrator in accordance with the Rules of Court.
(5)
A party to an award in an arbitration carried out as a result of an order under this section may register the award, in accordance with the Rules of Court, in the court that made that order and the award, when so registered, has effect as if it were a decree made by that court.
19E Private arbitration
(1)
A court having jurisdiction under this Act may, on application by a party to the private arbitration of a dispute, make such orders as the court thinks appropriate to facilitate the effective conduct of the arbitration.
(2)
A party to an award made in a private arbitration of a dispute may register the award, in accordance with the Rules of Court, in a court having jurisdiction under this Act and the award, when so registered, has effect as if it were a decree made by that court.
(3)
In this section “dispute” means:
(a)
Part VIII or Part VIIIAB proceedings; or
(b)
any part of such proceedings; or
(c)
any matter arising in such proceedings; or
(d)
a dispute about a matter with respect to which such proceedings could be instituted.
19F Review of awards made in private arbitration
A party to a registered award made in private arbitration may apply to the Family Court for review of the award.
19G Review of awards made in matter referred to arbitration without the consent of the parties
(1)
The court must hear an application for review of a registered award made in a matter that was referred to arbitration without the consent of the parties as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(1A)
The court may receive as evidence:
(a)
any affidavit or exhibit tendered in the first hearing;
(b)
any further affidavit or exhibit;
(c)
the transcript (if any) of the first hearing; or
(d)
if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
19H Advice about mediation and arbitration
(1)
The appropriate officer of a court exercising jurisdiction under this Act, as far as practicable, on request by a party to a marriage or to proceedings under this Act, advise the party about any mediation or arbitration facilities available in the court and how those facilities are made available.
(2)
The Rules of Court must provide for persons who propose to institute proceedings under this Act, and (in appropriate cases) their spouses, and other interested persons, to be given a document setting out particulars of any mediation and arbitration facilities available in the court and elsewhere.
19J Oath or affirmation by approved mediator
An approved mediator must, before starting to perform the functions of such a mediator, make an oath or affirmation of secrecy in accordance with the prescribed form before a person authorised under a law of the Commonwealth, or of a State or Territory, to take affidavits.
19K Oath or affirmation by approved arbitrator
An approved arbitrator must, before starting to perform the functions of such an arbitrator, make an oath or affirmation in accordance with the prescribed form before a person authorised under a law of the Commonwealth, or of a State or Territory, to take affidavits.
19L Protection of mediators and arbitrators
An approved mediator, an approved arbitrator, or an arbitrator who carries out a private arbitration, has, in performing the functions of such a mediator or arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of such a Judge.
Interpretation
Section 38N of the Act be amended by inserting after paragraph (1)(d) the following paragraph:
(da)
a Principal Director of Mediation;
Section 67ZA(1) of the Act be amended by inserting after paragraph of the definition of "member of the Court personnel" the following paragraphs:
(aa)
an approved mediator; or
(ab)
an approved arbitrator; or
Section 123 of the Act be amended by inserting the following paragraphs:
; and
(zf)
the referral of any proceedings in the Court, or any part of such proceedings or any matters arising out of such proceedings, to a mediator or an arbitrator for mediation or arbitration, as the case may be; and
(zg)
the procedures to be followed by a mediator or an arbitrator in mediating or arbitrating anything referred for mediation or arbitration under this Act; and
(zh)
the attendance by persons at conferences conducted by mediators or arbitrators for the purposes of mediating or arbitrating anything so referred; and
(zi)
the procedure when any such mediation or arbitration ends, both where it has resulted in an agreement or award and where it has not.
Costs
Section 117C of the Act be amended to include the following:
(1A) Unless approved by a Judge or Registrar in the exceptional circumstances of the case, the maximum costs and disbursements that a legal practitioner may charge a party to proceedings shall not exceed $50,000 or 10 % of the combined value of the parties’ identified property and superannuation which ever is the higher.
(1B) For the purpose of this section costs does not include;
(a) costs incurred by a party prior to the commencement of proceedings,
(b) costs incurred by a party in preparing for and attending mediation including the costs of the mediator, or
(c) costs incurred by a party in preparing for and attending arbitration including the costs of the arbitrator.
(1C) to avoid doubt this section does not apply to proceedings in which an application pursuant to Part VII is also before the Court.